Unpacking the Employment Implications of Comcast Corp. v. Behrend: The Second Circuit Prepares to Dive In

Class actions (and even the threat thereof) are one of the most powerful tools wielded by plaintiffs in employment matters. Much to the dismay of many plaintiff-side attorneys, recent Supreme Court decisions have made it significantly harder for plaintiffs to certify classes. The Court’s watershed 2011 opinion in Wal-Mart Stores, Inc. v. Dukes heightened the threshold for certification generally and specifically under Fed. R. Civ. P. 23(b)(2). And, describing class actions as “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,” Wal-Mart appeared to signal that the Supreme Court would be taking a more rigorous approach to class certification generally. This was confirmed last year in Comcast Corp. v. Behrend, a case in which the Supreme Court held that the predominance requirement of Fed. R. Civ. P. 23(b)(3) had not been met and vacated the lower court decisions certifying the class.

Reprinted with permission from: Inside, Spring/Summer 2014, Vol. 32, No. 1, published by the New York State Bar Association, One Elk Street, Albany, New York 12207, (1-800-582-2452), http://www.nysba.org.